Download American Lands Alliance v. BLM

Overcoming Opposition:
The Challenges to Natural Gas
Development in the Rockies
Larry Wolfe, Chairman - Natural Resources Dept.
Holland & Hart LLP
IPAA Annual Convention
October 27, 2004
October 27, 2004
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The Press View
• San Francisco Chronicle – 10/25/04
• “The fight over drilling in federal lands
around Pinedale (WY)…one of the most
important land-use battles in the West,
along with disputes in the PR region of
northeast WY, the San Juan Nat. Forest
in CO, the…Book Cliffs area of Central
Utah and Otero Mesa region in SE NM.”
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The Rockies
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Major Federal Laws That
Impact Development
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National Environmental Policy Act (NEPA)
Endangered Species Act
Clean Water Act
Clean Air Act
FLPMA
National Historic Preservation Act
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Tools to Stop Projects
• Citizen’s Suits
– CAA, CWA, RCRA, CERCLA, ESA
• Appeals of Regulatory Decisions
• Lobbying Governors and Legislators
• Comments, Protests, Objections to Agency
Decisions
• Petitions for Agency Action
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NEPA
• For “major Federal actions significantly
affecting the quality of the human
environment”
• Agencies must prepare an (EIS) analyzing the
environmental impacts of the proposed action,
and comparing them with the impacts of
alternatives, including a no action alternative.
• NEPA does not impose substantive
requirements. NEPA requires the agency only
to identify and evaluate environmental
concerns. “Hard look” at the environmental
consequences of their actions.
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Endangered Species Act
• Identification and listing of threatened and
endangered Species which Federal agencies
are required to conserve
• Cannot jeopardize listed species or result in
destruction or adverse modification of critical
habitat
• No unauthorized taking
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Clean Water Act
• Prohibits the discharge of pollutants to waters
of the US.
• States issue permits, called NPDES, for the
discharge of water from CBM wells.
• Quality of CBM water varies in the PRB but
water can be very high quality.
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Clean Air Act
• Sets ambient air quality standards
• Defines areas of the country that meet or do
not meet standards
• Protects areas such as National Parks,
National Monuments, Wilderness
• Visibility regulation
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FLPMA and BLM Leasing
• BLM develops broad land use plans, generally
called Resource Management Plans (RMPs).
• BLM issues leases, which must be consistent
with the applicable RMP.
• Lessee must obtain BLM approval of an
application for permit to drill (APD) before
commencing drilling operations or any related
surface disturbance.
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CBM Development in the
Powder River Basin
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19,500 CBM Wells Drilled in PRB
900 Million CFD
566 Million Barrels of Water/Year (03)
51,000 Wells Considered in BLM EIS
25 TCF estimated reserve
11 CBM Pilot Projects in other parts of
Wyoming
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Wyoming CBM Developments
Powder
River Basin
Riley
Ridge
Pipeline
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Seminoe
Road
Atlantic
Rim
Baggs
South
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What Is All the Litigation?
• Challenges to EISs, RMPs and leasing decisions
– Since February 2000, 25 of 26 BLM leasing decisions.
Basis of these challenges include failure to analyze
full range of alternatives, no protection of
endangered species, impacts on winter ranges,
impacts on cultural resources.
• Water discharge – Interstate issues, quality,
amount, timing, trespass, impairment of use of
ranch land.
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Circuit Court opinions:
Pennaco Energy, Inc. v. DOI,
2004 WL 1776013 (10th Cir., Aug. 10, 2004)
Northern Plains Resource Council v. BLM,
No. 04-35002, D.C. No. CV-01-00096-JDS (9th Cir., August 26,
2004)
In Wyoming Federal District Court:
American Lands Alliance
No. 04-CV-0019-J (D.
Western Organization of
No. 04-CV-0018-J (D.
v. BLM,
Wyo.)
Resource Councils v. Clarke,
Wyo.)
In Montana Federal District Court:
Environmental Defense v. Norton,
No. CV 04-64-BLG-RWA (D. Mont.)
American Lands Alliance v. United States BLM,
No. CV 03-71-BLG-RWA (D. Mont.)
Northern Cheyenne Tribe v. Norton,
No. CV 03-78-BLG-RWA (D. Mont.)
Western Organization of Resource Councils v. Clarke,
No. CV 03-70-BLG-RWA (D. Mont.)
October 27, 2004
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Leasing Challenges
Pennaco Energy, Inc. v. United States Department of
the Interior, 2004 WL 1776013 (10th Cir., Aug. 10,
2004)
February, 2000: BLM issues 3 CBM leases to Pennaco.
For NEPA compliance, BLM relied on two previously issued
documents:
October, 1985: Buffalo RMP EIS. Included analyses of the
environmental impacts of conventional oil and gas development,
but did not specifically address CBM development.
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Pennaco, continued
May, 1999: Wyodak DEIS. It considered CBM development, but
because it was a post-leasing study, it did not consider the “no
action” alternative, that is, not issuing any leases at all.
August, 2004: Tenth Circuit says the BLM did not take the
required “hard look” at the environmental impacts of CBM
development. The Tenth Circuit reversed the district court decision,
and remanded with instructions to reinstate the IBLA decision.
The IBLA decision remanded the matter back to the BLM “for
additional appropriate action.” Reportedly, the BLM has not yet
decided what the appropriate action is.
Are these leases void? Or will they be saved by the fact that the
BLM has since prepared EISs that address CBM impacts and a no
action alternative.
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Northern Plains Resource Council
1997 to 2001: 23 lease sales and 40 APDs approved.
For NEPA compliance, BLM relied on previous documents:
1984 and 1985: EISs for Billings and Powder River Resource areas.
1994: Amendments dealing with oil and gas.
BLM noted unknown factors such as the amount of produced water from
CBM development, but anticipated only low levels of CBM development,
and determined that some exploratory drilling could be accommodated.
August 2004: Ninth Circuit affirmed -this limited level of CBM activity
had been considered in the EISs, and would not violate NEPA. The court
also held that a six-year statute of limitations prevented consideration of
the adequacy of these EISs and amendments.
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EIS Challenge
American Lands Alliance
January, 2003: Montana BLM issued EIS for CBM
development statewide, and Wyoming BLM issued EIS for
CBM development in the Powder River Basin.
ALA asserts that the agencies did not take the required “hard
look” at impacts on two wildlife species: sage grouse and
black tailed prairie dogs.
ALA filed in Montana federal district court. State of Wyoming
intervened, and successfully moved to transfer the Wyoming
portion of the case to Wyoming federal district court.
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American Lands Alliance – continued
Federal defendants brief: EISs analyze effects on groundwater, surface
water, physiography, geology, paleontology, mineral resources, soils,
landscape processes, vegetation and other land cover surfaces, wetlands,
threatened species, cultural resources, visual resources, recreational
resources, noise, air quality, climate, and wildlife. It addresses 24 shortgrass prairie species, 25 shrubland species, 16 riparian species, and 12
coniferous woodland species. It includes a long list of mitigation measures
for sage grouse and prairie dogs.
Federal defendants brief: the ALA’s limited focus, solely on sage grouse
and prairie dogs, is “fly specking” the EIS.
Oral argument was held July 2, 2004, and the case is under advisement.
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Western Organization of Resource Councils
Plaintiffs or aligned with planitiffs: Natural Resources Defense Council,
EarthJustice, Wyoming Outdoor Council, Powder River Basin Resource
Council, and several individuals.
Aligned with defendants: Western Gas, Marathon, Pennaco, Williams,
Lance, Bill Barrett, Anadarko, Devon, and Fidelity.
State of Wyoming intervened, and got Wyoming portion moved to
Wyoming federal district court. However, Montana federal district court
held onto jurisdiction over one of the basic questions: whether one EIS
should have been done for CBM development in Montana and Wyoming.
Oral argument July 2, 2004; case under advisement.
October 27, 2004
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Western Organization of Resource Councils – continued
Scope of EISs:
51,000 CBM wells in the Powder River Basin.
17,000 miles of roads and 26,000 miles of pipelines.
1 trillion gallons of produced water.
Allegations include:
BLM did not take the required “hard look” at groundwater, surface water, soils
and vegetation, and air quality.
BLM did not do an objective, unbiased review of impacts.
BLM did not examine a reasonable range of alternatives.
BLM did not allow adequate public comment.
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New Mexico Litigation
• San Juan Citizens Alliance v. Norton –
recently transferred from DC to NM Fed. Ct.
• Challenge to BLM RMP and EIS for the
Farmington Regional office assessing multiple
uses on Federal Land.
• Authorized the development of 9,000 wells
over 20 years.
• Suit alleges Plan failed to evaluate impacts on
environment, cultural resources and other
uses, including cattle grazing.
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Environmental Defense Fund – Air Quality
Amended complaint filed August 16, 2004. Federal defendants
have not yet answered.
State of Wyoming has moved to intervene. Other motions to
intervene are likely.
Focus is on air quality issues:
BLM was required to impose air emissions limits and
controls.
BLM was required to model cumulative air quality impacts.
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All Industries Implicated
• All industries accused of unacceptable emissions
– Oil and gas operations
– Refineries
– Coal mines
– Power plants
– Cement plants
– Compressor stations
– Gravel pits
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EDF
Shift Regulation of Air Quality
• Air quality currently regulated by states with EPA
oversight
• Lawsuit attempts to shift responsibility to BLM
• Seeks to force BLM to adopt emissions limits and
control measures in Resource Management Plans
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EDF Shift Regulation, continued
• NEPA and FLPMA challenge
– Obligation to protect applicable increments
– Bypasses air quality permit and regulatory
systems under federal and state clean air laws
that provide variances from Class I increments
if no adverse effect on air quality-related values
– Seeks most stringent PSD increments for Class I
areas
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EDF
Cumulative Air Quality Analysis
• EIS’s for RMP’s did not analyze cumulative air
impacts of CBM development plus all other
existing and reasonably foreseeable sources
• Analysis would take so much time that all CBM
development in PRB could be halted for years
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EDF Cumulative AQ Analysis, continued
• Model could show that theoretical, modeled
exceedances have already occurred
• Basis for actions in courts and agencies seeking
emission reductions by sources of all kinds
• Already used by environmental groups in North
Dakota
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State-wide Trigger of PSD Baseline
• Alleges that applicable PSD baselines for
Wyoming and Montana were triggered
decades ago
• Follows that PSD increments already consumed
or exceeded
• Then new sources could get no permits without
offsets
• Existing sources would be pressured to reduce
emissions
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EDS – Claims Standards Are
Already Exceeded
• Ambient standards already violated by existing
sources
• Result in reclassification as nonattainment areas
• Offsets for new sources
• Industry sources would be principal if not sole
target of SIPs
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EDF – How to Resolve
• Industry interveners want to make sure they are
at table if settlement discussions occur.
• NPS has aggressive agenda regarding protection
of Class I areas
• Major air quality policy and regulatory issues
determined by Interior (BLM and NPS) in western
U.S.
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Other Challenges
• Sage Grouse - potential listing as threatened
and endangered.
• SF Chronicle – “Upper Green boom could turn
into a bust because of a black-and-white,
chicken sized bird.”
• Big effort in many states to gather data and
establish conservation plans to head off
listing.
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Sage Grouse
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Greater Sage-Grouse Petition
• U.S. Fish & Wildlife Service Notice
of 90-Day Finding on Petitions to List Greater
Sage-Grouse as Threatened
or Endangered under Endangered
Species Act
69 Fed. Reg. 21484 (April 21, 2004)
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Petition to List
• Petitioners
– Institute for Wildlife Protection
– American Lands Alliance
• FWS required to make finding within 90 days of
receiving petition as to whether petition presents
“substantial information” that action may be
warranted.
ESA § 4(b)(3)(A)
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FWS Finding
• Petitions “present substantial information
indicating that listing the greater sage-grouse
may be warranted”
• FWS “accept[s] petitioner’s sources and
characterizations of the information”
• Next step is more thorough review
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Criteria for Listing
• FWS may list species if any of following:
A. Destruction, modification, or curtailment of
habitat or range
B. Overutilization for commercial, recreational,
scientific, or educational purposes
C. Disease or predation
D. Inadequacy of existing regulatory
mechanisms
E. Other manmade or natural factors affecting
continued existence
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Sage-Grouse Habitat
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Relies on sagebrush for cover and food
1800 – 1.1 to 16 million birds
2000 – 100,000 – 500,000 birds
Sagebrush once covered 156 million acres
One-half of original area occupied by sagegrouse no longer capable of supporting sagegrouse year-round
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Factor (A) – Habitat Destruction
• FWS finds that there is “substantial information .
. . indicating that previous and ongoing habitat
loss, degradation, and fragmentation within
remaining habitats are factors that may threaten
the continued existence of the greater sagegrouse.”
69 Fed. Reg. at 21490
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Factor (D) – Insufficient Regulatory
Mechanisms
• Notwithstanding state and BLM management
authorities, “[t]o the extent that . . . humancaused habitat degradation is contributing to
population declines of greater sage grouse . . . it
indicates that existing regulatory mechanisms . . .
may be inadequate with regard to addressing
threats to the species.”
69 Fed. Reg. at 21492
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Implications
• Sage-grouse is but one of many species that are
still numerous enough to be hunted under state
laws but that are declining.
• ESA 90-day finding process
– Puts burden on affected parties to disprove
allegations of petitioners, rather than burden
on FWS to go behind petitions
– FWS still has to conduct rigorous review
before final decision to list
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Other Issues
• Big game migration – Antelope and
mule deer impose winter drilling
limitations
• Colorado Endangered Fish – Squawfish,
Humpback Chub
• Historic Trails and cultural artifacts
• Off highway vehicle use
October 27, 2004
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What Can Industry Do To Head
Off Litigation
• BE PROACTIVE! Make sure that the agency
analyzes the impacts.
• Get involved in the EIS and RMP planning
process.
• In Wyoming and other states multiple EISs and
RMPs are under review and being revised by the
BLM to keep up with the impacts of
development.
• Predevelopment communication with land
owners and downstream water users.
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Example of Ways to Resolve
Litigation
• Bill Barrett Corp. recently resolved a lease
challenge in Wyoming. Biodiversity
Conservation Alliance withdrew its appeal.
• Barrett agreed to: reduce traffic during
sage grouse and hawk breeding and
nesting; reduce water discharges;
safeguard water quality; avoid prairie dog
colonies; additional dust suppression;
establish a $50,000 conservation fund.
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Thank You!
Lawrence J. Wolfe
Holland & Hart
2515 Warren Ave. Ste. 450
Cheyenne, WY 82001
[email protected]
307-778-4218
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